Why Do People Keep Insisting That Google Has A Better Idea What's Infringing Than Viacom?

from the bizarre-reasoning dept

When a piece on copyright law is written by a "former commissioner and vice chairman of the U.S. International Trade Commission" and the "dean emeritus of Boston University School of Law and chairman of the Center for the Rule of Law," I would expect that the reasoning would make a lot of sense, but I find myself quite troubled by what Ronald Cass claims in a recent Forbes article about the Google/Viacom battle concerning YouTube. Basically, Cass seems to repeat all of Viacom's talking points and not consider the actual facts of the situation. It's very strange. Perhaps he is only taking a superficial look at the facts. Let's help him out.

Disclosures of internal e-mails portray YouTube as a business designed, operated, and marketed to make money from users unlawfully posting copyrighted material (pirated clips from Saturday Night Live and The Colbert Report, for instance). YouTube founders knew their site was carrying "truckloads" of pirated material. Steve Chen chastised fellow cofounder Jawed Karim for putting up "stolen videos" himself, adding, "We're going to have a tough time defending the fact that we're not liable for the copyrighted material on the site . . . when one of the cofounders is blatantly stealing content from other sites and trying to get everyone to see it."

This is the money quote that Viacom and its defenders keep repeating. But it was taken totally out of context. The discussion, when put back into context, shows clearly that Chen and Karim were not arguing about copyrighted material like "pirated clips from Saturday Night Live and The Colbert Report," as Cass claims, but about viral videos from other online video sites that were like YouTube.

Google spotted the piracy problem early on. Its executives contrasted YouTube's encouragement of copyright violations with Google Video's screening to find and remove the most likely violations. But piracy proved the more successful business model, and Google ultimately swallowed both its scruples and YouTube, buying the site for $1.65 billion.

Indeed. And no one denies that there is a ton of content on YouTube that violates copyrights and is being used in an unauthorized manner. What no one has been able to explain -- certainly not Viacom nor Cass -- are how anyone other than the copyright holder could possibly know which content is authorized and which is not. Even Viacom's own partner, BayTSP, compared Viacom's rule book -- which changed every few days -- of what was authorized and what should be taken down to Crime and Punishment. And yet Cass and Viacom think that Google should "just know" what's infringing?

Viacom's claims are rooted in mainstream property rules and liability rules. Property rules give people rights in things they've created or bought, including the right to keep anyone else from using it without their consent. You can't take a bite of someone else's burger or swipe one of their fries as you walk through a restaurant just because you think it looks really tasty; you don't have a right to grab what isn't yours. Liability rules make it illegal to act in ways that put other people at risk when there are reasonable ways to protect them, like construction companies warning folks nearby when they're going to be blasting.

This is really incredibly wrong, and surprising from a supposed expert in "intellectual property" law. Copyright law, specifically, developed independently from property and liability rules, because it has an entirely different purpose. Property laws are about figuring out who possesses ownership of a scarce item. Liability laws are about who is responsible for putting others at risk. Copyright is about promoting the progress of science and the useful arts. Saying that it comes from the same place is just blatantly wrong. Copyright is not about liability or property -- it's a monopoly privilege granted to certain people for the sake of increasing the incentive to create.

Ideas and creative work, the subjects of intellectual property (IP) law, aren't exactly like other things. Ideas can be used without being used up, but innovative and creative work often are tremendously expensive to create and hard to protect, which is why IP law resembles ordinary property and liability law.

He's right on the first part, but wrong on the latter. IP laws resemble property and liability laws only due to the work of lobbyists who have worked quite hard to change the very nature of copyright law far, far away from its intended purpose.

Supreme Court decisions in the 1984 Sony case and the 2005 Grokster case frame the rule on IP liability. Sony wasn't liable for copyright infringements by people using its Betamax video recorders because most Betamax use didn't infringe copyright and Sony had no relatively easy way to police infringement. Grokster, however, was liable for infringements by users of its peer-to-peer file sharing software because it promoted infringement as the use most likely to be made of its product.

This is such an extreme misreading of both Supreme Court rulings that it again seems to come straight from the Viacom talking points. The basis of the Sony Betamax decision was the "substantial non-infringing uses" of the technology -- something that is also true of YouTube. I'll note that Cass totally ignores that after Viacom took down 100,000 videos which it claimed were infringing (some, it later admits, it was mistaken about), Viacom expected traffic to YouTube to drop, since it believed that it was its content that kept YouTube going. But traffic grew. Oops. It is true that part of the Grokster decision was because it had some ability to police infringement, but the key to the Grokster ruling was the direct inducement by Grokster in suggesting users infringe.

The question of ability to police was not central to either ruling -- but is central to this case. And, again, Cass totally ignores that whole Crime and Punishment list of rules that Viacom had, and the fact that Viacom worked very hard to put up content on the site that looked like it was infringing when it was really authorized. Why would he ignore that and misrepresent those two other cases?

Information disclosed so far puts YouTube-Google in jeopardy on both property and liability claims. YouTube facilitated massive copyright violations and knew it, made a lot of money from traffic built on copyright violations and had relatively easy, cost-efficient ways of monitoring them. In fact, YouTube did monitor but stopped when it became clear just how much of its traffic and revenue were tied to piracy. Google stepped into YouTube's shoes when it bought the company and turned a blind eye to what was going on.

Again, Cass completely overlooks the facts of the case and misleadingly goes back to "property and liability claims" rather than what copyright law actually says. Why would he do that? The problem, again, is that despite his claims, YouTube-Google did not know what content was infringing and what was authorized. Cass says they could monitor it, but gives no explanation whatsoever how it could possibly know that the videos uploaded by MMysticalGirl8 from the local Kinkos were actually authorized by Viacom.

That's where the argument for a different Internet law comes in. YouTube-Google and sympathizers like EFF say that the Digital Millennium Copyright Act (the 1998 law Congress put in place to address a set of technology-related IP issues) insulates YouTube-Google.

No, Cass is wrong again. The argument for the DMCA coming it comes at the beginning of this case. Not well into it. Why? Because this is not a property or liability case. It's a copyright case.

But DMCA isn't a radical departure from the Sony-Grokster framework, just a specific application to players in the Internet world, spelling out copyright infringing acts and "safe harbors." Notably, Section 512 prevents liability for a service provider storing infringing material if the provider doesn't know about it, have information that makes the infringing activity apparent or profit from it, and takes infringing material down promptly when aware of it. The e-mails and other material show that YouTube-Google misses the safe harbor on almost all counts (more like crashing into the dock than sailing into the harbor).

Once again, Cass misses the most basic facts of this case in a troubling way. Google did, in fact, take down material promptly "when aware of it." The key question -- which you'll note Cass conveniently skips over is what constitutes "when aware of it." That is the key point that will determine this case, and you would think someone of Cass's background would know to highlight it. Instead, he hides it.

Google argues that it was not aware of specific infringement, in part because it has no way of knowing whether or not the content is infringing or authorized -- especially when Viacom is going through all that trouble to make authorized content look infringing, while also authorizing all sorts of content with a huge and ever-changing rulebook. Viacom, on the other hand, claims that "when aware of it" just means aware in general that there is infringing content on the site.

But such an interpretation of the DMCA would render those safe harbors effectively meaningless. It would effectively say that if there's any infringing content on your user-generated site, you no longer qualify -- even if you can't figure out which content is specifically infringing and which is not. That makes no sense.

EFF wants to expand the harbor for providers by requiring direct notice of each individual posting of copyrighted work (followed by a decision not to act), reasoning that "take down" incentives under DMCA are enough. This rewrites the law, which recognizes that providers often are in much better position than copyright owners to find violations.

This is wrong on so many levels. The law does not and never has recognized that providers are in a better position to find violations. In fact, the law says the exact opposite. The whole point of the safe harbors is because the service providers can't really know for sure what's infringing until they receive notice -- exactly as the EFF notes. They aren't trying to "expand" the safe harbors. They're just saying what the purpose of those safe harbors has always been.

There's too much material for an individual right holder to screen, too many "private" sections of sites that copyright holders can't see (though providers can) and more efficient alternatives for reducing the amount of pirated material on sites that reward piracy.

And he closes with the "but it's just too difficult" for copyright holders argument. But he doesn't note that it's even more difficult for the service providers who aren't the copyright holders and have no idea if the content has been put up there in an authorized manner or not.

The thing is that Viacom is mad that Youtube even began to begin with. Copyright laws are so ridiculous that of course they would stop any video site from forming (if it weren't for the part of the constitution that says that it should only be used to promote the progress), but that's the point, to hinder the progress and prevent independents from competing in the market. but we shouldn't allow such progress and such a useful innovation like Youtube to be destroyed just because of some nefarious copy privilege laws. No thanks.

Google, early on, tried to address the copyright issue and tried to figure out how to minimize and eliminate infringement from their services. Viacom's only conclusion is that because such was impossible early on no site should ever have been allowed to host user generated videos and the social utility created by these venues should have been denied to us because of some nefarious laws. Viacom simply wants to ensure no one can compete with them and they want to eliminate competition and their only complaint is that now anyone can create their own content and compete with them.

What Viacom is trying to argue for is unconstitutional being that copyright is clearly supposed to promote the progress and Viacom argues that the only way to have avoided infringement would be to have not created a user generated content venue to begin with, which only serves to hinder the progress. What, was youtube not supposed to address the copyright issue ahead of time and pretend that it couldn't happen? Of course there would be users that would post copyright content, especially given how ridiculous our laws are (ie: if I video tape something in my house and there is a picture on my wall and that picture is copyright and just so happens to make it in the video fro a second, the video can be taken down for infringement). Is Google supposed to pretend that such tings aren't going to happen, or are they going to discuss how they're going to address the issue when it does happen to take appropriate action to remove such content and take preventative measures to avoid such incidents from happening in the first place? They should do the later, and they did, and now Viacom is saying because they knew some users might post infringing content to begin with and Google tried to address this problem and discuss how it should be dealt with and prevented, Google should be punished? In other words, Youtube should either not have formed to begin with or pretended that infringement would have never occurred and done nothing to address the issue until after infringement occurred.

I hope the judge reads this and sees how ridiculous the conclusions are and how Viacom's actions are only seeking to prevent the progress which itself is unconstitutional.

Re:

The mind boggles at the inability of very intelligent people to grasp the concept of liability in copyright cases.

No logical reading of the law, along with a very basic understanding of how YouTube works, could possibly find YouTube or Google at fault in this scenario.

If anything, Viacom need to be warned that uploading content in a way that appears unauthorised, will only create the impression amongst users uneducated in the legal specifics that infringement is an acceptable and widespread practice.

Question for Viacom and Cass

I have uploaded a grand total of 1 video to Youtube, and that is a video of my bungee jumping. This video was shot by the company that ran the jump. Now I paid for this video, but there was no paperwork associated with it, so I can't say that I own the copyright on it or had any right to post it to youtube.

My question is how in the world could Google possibly know if that video is infringing? it is obvious that i wasn't doing the recording (since I'm bouncing around on a rubber rope) and whoever filmed it likely owns the copyright. I didn't license it, so it probably is (technically) an infringing use of the video. But again, how could Google know?

Re: Question for Viacom and Cass

It's simple. The best way is to assume all videos are infringing. They can be sent through Viacom's approval servers for a small fee and if they are approved, then Youtube will be permitted to post them. Couldn't be easier!

Re: Question for Viacom and Cass

That's the entire point. Even worse, (better?) as more and more companies (including Viacom!) make use of youtube for legitimate means, the ability for Google to determine infringing from non-infringing becomes nigh impossible.

Kickass

The other thing that is being overlooked is the fact that Viacom is guilty of everything they accuse Youtube of. Mainly, of taking content from Youtube and reposting it on it's own video site, without the permission or knowledge of the original poster.

Re:

Forbes doesn't pay people to think

Does Forbes even pay its writers to think? While Dan "Fake Steve Jobs" Lyons was a senior editor there he wrote pro-SCO, anti-open source articles that appeared to come directly from SCO's own talking points. They were just as dishonest as the "Fake Steve Jobs" crap.

Forbes evidently believes the reporter should be at most a stenographer for the powerful. Still, what else would you expect from capitalist tools working for a magazine founded from the closet.

Question

Why is it that a short clip of a movie or tv show is considered a copyright infringement? If somebody posts a short little clip or scene or whatever so that people can see it, learn about the larger work, comment on it, vote it up or down ... isn't that a fair use?